Exhale! Blow, blow, blow! Get it all out, keep blowing, yell the Cops!

Remember, I was a cop for almost 3 years in Williamson County, Texas.  And, while I never sought out the training to administer the breath tests on any of the machines that allegedly measure alcohol concentration on a person’s breath, I definitely was present when these tests were given by cops, and most of the time, I felt like I had somehow slipped into a boot camp and that there was a drill sergeant present to coach the person into giving a deep lung sample.  In fact, the training manuals actually call the samples "deep lung air" and teach officers to get suspects to blow, blow, blow, keep blowing until they have pushed all the air out of their lungs.  When blowing this much air out, it almost feels like you are going to throw up, especially if you have any lung ailments or breathing difficulties.

While I’m glad to see that we are pushing forward and not afraid to take a case to trial only because of a number on a breath test, the sad fact is that many agencies are beginning to seek blood more and more and that many state legislatures are allowing it too! Fortunately, juries still have the ability to watch the video and see the person’s performance and not convict solely based on a number on a piece of paper.

As always, I believe a person should refuse to do all the field sobriety tests and yes, there’s a strong likelihood of being arrested, but the statement by the officer, "I just want to make sure you are okay to drive" could not be further from the truth.  Please, minimize the evidence cops gather against you by remaining silent and refusing these ridiculous tests.  My only exception to refuse breath tests is to avoid blood being taken…. it is far better to only share that sample than the contents of everything tracked in our blood….

Lawrence Taylor posted on his DUI blog following article about a month ago and I must say that I agree with the findings written in it along with the mentality of the training and officers that administer the breath tests:

Breathalyzer Results Depend Upon Your Breathing Pattern

Want to trick that breathalyzer into a false reading? Not that difficult: just change your breathing pattern.

As I’ve indicated in literally hundreds of earlier posts, these breath machines which determine guilt or innocence in DUI cases are not exactly the reliable devices that law enforcement would have us believe. (See, for example, How Breathalyzers Work – and Why They Don’tWhy Breathalyzers Don’t Measure Alcohol and How Accurate Are Breathalyzers?.)  Yet another example of that unreliability is the fact that the results will vary depending upon the breathing pattern of the person being tested.

This has been confirmed in a number of scientific studies.

In one, for example, a group of men drank moderate doses of alcohol and their blood-alcohol levels were then measured by gas chromatographic analysis of their breath. The breathing techniques were then varied.The results indicated that holding your breath for 30 seconds before exhaling increased the blood-alcohol concentration (BAC) by 15.7%. Hyperventilating for 20 seconds immediately before the analyses of breath, on the other hand, decreased the blood-alcohol level by 10.6%. Keeping the mouth closed for five minutes and using shallow nasal breathing resulted in increasing the BAC by 7.3%, and testing after a slow, 20-second exhalation increased levels by 2%. "How Breathing Techniques Can Influence the Results of Breath-Alcohol Analyses", 22(4) Medical Science and the Law275.For another study with similar findings, see "Accurate Measurement of Blood Alcohol Concentration with Isothermal Breathing", 51(1) Journal of Studies on Alcohol 6.

Dr. Michael Hlastala, Professor of Physiology, Biophysics and Medicine at the University of Washington has gone farther and concluded:

"By far, the most overlooked error in breath testing for alcohol is the pattern of breathing….The concentration of alcohol changes considerably during the breath…The first part of the breath, after discarding the dead space, has an alcohol concentration much lower than the equivalent BAC. Whereas, the last part of the breath has an alcohol concentration that is much higher than the equivalent BAC. The last part of the breath can be over 50% above the alcohol level….Thus, a breath tester reading of 0.14% taken from the last part of the breath may indicate that the blood level is only 0.09%." 9(6) The Champion 16 (1985).

Many police officers know this. They also know that if the machine contradicts their judgement that the person they arrested is intoxicated, they won’t look good. So when they tell the suspect to blow into the machine’s mouthpiece, they’ll yell at him, "Keep breathing! Breathe harder! Harder!" As Professor Hlastala has found, this ensures that the breath captured by the machine will be from the bottom of the lungs, near the alveolar sacs, which will be richest in alcohol. With the higher alcohol concentration, the machine will give a higher — but inaccurate — reading.







DWI “Warning” Revision, a Step in the Right Direction?

One part of the dismal night of going to jail for Driving While Intoxicated (DWI) in Texas is having to listen to, read-along with, and understand the “Statutory Warning” that is required before the arresting officer or one helping him or her may take your breath or blood. Why do I sound so skeptical of this? Well, I’ve linked the document above, and please keep in mind while you read it that an allegedly intoxicated person (one who has lost the normal use of mental and physical faculties) is supposed to understand this and make an informed decision….Yeah, right!

The idea behind this document is to remove any sense of coercion by the cops that are trying to get a sample of the arrestee’s breath or blood. 

It further discusses potential license suspension for refusing to give a sample of breath or blood, providing a failing sample (above .08) and requesting a hearing to maintain your driving privilege.

As a criminal defense attorney for Austin, Travis and neighboring counties, I have personally criticized the prior DIC-24 forms and have always believed that they are overly complicated, and honestly, baffling, confusing, or just downright hornswoggling!

For example, it has always amazed me and seemed outlandishly deceptive that the form will describe what happens, at least partially, if you provide a sample above .08 but they leave out the fact that if you are below, almost always, the person is going to jail anyway for having lost the normal use of mental or physical faculties…. And they even have a line you can sign on for refusing a sample, and for refusing to sign the line… let’s just dig ourselves further into an evidentiary morass.

 The new DIC-24 adds the following language for search warrants for blood samples:

If you refuse to submit to the taking of a specimen, the officer may apply for a warrant authorizing a specimen to be taken from you.

Yes, this is a step in the right direction, so I am glad the language is present, but it only partially tells the entire story… In fact, my fear is that people not fully understanding the entire document with all of its legal jargon will just think, “Oh no, this cop is gonna stick me with a needle and take my blood” and that will cause them to provide a sample that they would not have otherwise provided….

To close, it is too early to determine if future DWIs will be impacted because of officers using an old form without the above warning, but it will certainly be a point of litigation for the foreseeable future! So criminal defense lawyers reading this blog and anyone else with an interest, please make sure to compare forms and take steps if the correct DIC-24 is not used in the DWI case you are defending or facing….

Afterall, we all know the deck is stacked for the State anyway.

Don’t “Look around Like a Drug User” in Austin…

In order to protect the parties involved, I am not disclosing any identifying information for those charged or the officers involved, other than to say, it was Austin Police Department officers and transient individuals.

Just for a brief review of caselaw applicable to this matter:

 A detention, as opposed to an arrest, may be justified on less than probable cause if a person is reasonably suspected of criminal activity based on specific, articulable facts. Terry, 392 U.S. at 22, 88 S.Ct. at 1880; Carmouche v. State, 10 S.W.3d 323, 328 (Tex.Crim.App.2000). An officer conducts a lawful temporary stop or detention when he or she has reasonable suspicion to believe that an individual is violating the law. Ford, 158 S.W.3d at 492. Reasonable suspicion exists when, based on the totality of the circumstances, the officer has specific, articulable facts that when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person is, has been, or soon will be engaged in criminal activity. Id. at 492-93. This is an objective standard that disregards any subjective intent of the officer making the detention and looks solely to whether an objective basis for the detention exists. Id. at 492. We look at only those facts known to the officer at the inception of the detention. State v. Griffey, 241 S.W.3d 700, 704 (Tex.App.-Austin 2007, pet. ref’d).

In order to prevent boring anyone to death by reciting a detailed review of these cases, I want to share an excerpt from the Probable Cause Affidavit written by the arresting officer and the information contained in [ ] are my editorial comments:

I noticed four individuals standing on the sidewalk, on the south curbline. [Not criminal, not standing in the roadway] The same four individuals were standing in front of an old vactan lot that was burned several years ago.  Through my training and experience working the downtown area command, I have seen homeless individuals stand in front of this vacant lot and smoke marijuana including crack cocaine.  As we (the officers) were approaching this area, I noticed the same four individuals looking around like drug users do when looking for officers in an area when trying to use a drug or sell a drug. [Does this mean looking around, over shoulders, etc? Wow, I do that all the time!]  As we were getting closer, the same individuals saw us approaching them and all had the "deer in the headlight look" [Surprise! Two cops riding toward you on bicycles---clearly they must be guilty (sic)].

As this continued, ultimately one subject was arrested and charged with possessing .035 ounces of marijuana

The outcome, resulted in a plea, despite my advice that we challenge the stop on the basis of an illegal stop/detention.  However, my client did not want to challenge it.  He was homeless and wanted only to get out of jail (only to go back to the street) … I urged him to allow me to fight for him, but he refused.  Some will say, he refused because he knew he was guilty, but my reason for wanting to fight this was not only to "save him from conviction" but to help end the cycle of bad police practices and habits.

Vindictive, Homophobic Cops Out Air Force Sergeant

Officer.com reports on an the revelation to the USAF about one of its own supervisor’s sexual orientation, and the excuse given by law enforcement was as follows regarding the NON-SUSPECT, innocent party:

The Rapid City Police Department says Newsome, an aircraft armament system craftsman who spent nine years in the Air Force, was not cooperative when they showed up at her home in November with an arrest warrant for her partner, who was wanted on theft charges in Fairbanks, Alaska.

Newsome was at work at the base at the time and refused to immediately come home and assist the officers in finding her partner, whom she married in Iowa, where gay marriage is legal, in October.

Police officers, who said they spotted the marriage license on the kitchen table through a window of Newsome’s home, alerted the base, Police Chief Steve Allender said in a statement sent to the AP.

When I read this, I was immediately angered by the officers’ actions.  I completely support their action in serving a warrant, peering through a window (if you don’t want this done close your blinds), etc… I have not issue with that.  However, the mere suggestion that they expected the non-suspect to leave work and come home is totally ridiculous.  That request is beyond any level of common-sense or daily comprehension….

And the Chief’s response was even more offensive and goes to show the lack of sensitivity or professionalism used by his officers:

It was a part of the case, part of the report, and the Air Force was privileged to the information." "It was a part of the case, part of the report, and the Air Force was privileged to the information.

The person named on the license was not the suspect and was not the named party on the warrant.  Thus, she had absolutely no reason to share her business with the Air Force.  They were not privileged to obtain that information. 

At least the Sergeant was honorably discharged, but regardless, a career was ended when there was no reason to do that.  I could rant for many pages on this point but have elected not to do so in order to keep my opinion focused and on point. 

Rather, I just want to summarize that every person has a reasonable expectation of privacy and this is just another example of why we need to protect it as much as we can.  While there could be reason to fear retaliation from cops who do not receive the level of cooperation they think they are entitled to, I suggest you always exercise your right to remain silent, and if you believe you must answer a question or provide them with something, do as little as possible, and always be polite… in the end, I think even retalitation for lack of cooperation will fall to the polite truth…this sergeant will recover from a job lost in a thankless organization, and she’ll be stronger and better off in the long run.

DNA & the misTruth?

Contained on Officer.com are multiple articles that I find completely fascinating as a defense attorney and former peace officer in Texas, but one caught my eye this morning as I was perusing my reader application, Lying for DNA.

This well-written article talks about multiple court cases and ways that the collection of DNA have been upheld and thus allowed as evidence in cases both in court and through the course of criminal investigation.  And, of course, it even borders on some of the more interesting points like those sometimes raised by conspiracy theorists, of which, I am a small one to an extent.

Without getting into the specifics of any of these cases, I found myself wondering just how much DNA a person leaves behind (I’ve googled but not found this) and how far some law enforcement officers are willing to go to get it (hopefuly as suggested in the article, not too far). To be clear, I’m not saying that any one officer is a bad apple and that they should not use whatever tools are available to them to get information that can be objectively used to establish an absence of guilt (the defense angle), but I am afraid of this becoming common practice in smaller cases.  I am afraid of a centralized database.  I do not want my very genetic coding "safe-guarded" for use or access by just any agency … Why?

Well, let’s start with the possibility that if that information is maintained, we are all identifiable… now how is that different from fingerprints? I guess it really is not, since fingerprints are also unique… except for one glaringly obvious reason:  to leave behind a fingerprint, I must be there and touch something… that’s not the case with DNA.

As I walk through a hallway, I’m shedding skin cells (DNA).  I lose hair (fortunately not from a hair-thinning issue, yet).  I touch things, cough, sneeze, etc.  All of these actions, most of which are involuntary may leave behind my DNA … and depending on the width and depth of the search conducted by police could put me really in the wrong place at the wrong time… afterall, we never know what will become a crime scene until it happens… just because DNA is present, in a very public place, does not mean that the person identified is responsible for the alleged crime… but it could create a very real and very stressful situation that could not only take time, money and jeopardize reputation, but just may be downright embarrasing.

In the end, I titled this article DNA and the misTruth for that very reason… just because my DNA shows up in a hallway or even on or in a car that was ultimately used in a crime scene, that does not make me the suspect.  Afterall, have you ever been in a car, perhaps on a date, and then chose never to see that person again.  Say that person turns up missing 4 months later and their car is found… are you responsible? Probably not… but should there be a centralized database with which to focus on you? I hope not… because that DNA would point to a misTruth… that you are the person responsible for someone going missing….